A Constitution of the People and How to Achieve It. Aarif Abraham

Mak Dizdar, The Stone Sleeper 1

      INTRODUCTION

Britain has an almost unique constitutional position among States. It is a long-established democracy, comprising four diverse nations, with an uncodified, non-federal constitutional arrangement. The constitution itself is a miscellaneous collection of flexible conventions, norms and rules governing political behaviour. It cannot be found written down in a single place and some aspects of it are not written down anywhere at all. To the ‘outsider’, as well as the most intimate of ‘insiders’, it can be difficult or even impossible to comprehend. The current monarch of the United Kingdom, Queen Elizabeth II, is reported to have remarked that “the British constitution has always been puzzling and always will be.”2 While that may be the case, the constitution has endured for almost three and a half centuries without armed conflict threatening its core structure. The foundation on which the constitution is built goes back further still to the Kingdom of Athelstan, over a thousand years ago. That thousand-year period was punctuated by armed conflict and bloodshed. Even Britain’s recent history saw armed conflict at its periphery and within its imperial dominions. Its constitutional structure, however, has had an undeniable longevity and continuity.

Bosnia and Herzegovina, by contrast, is a relatively recent democracy with an ethnically diverse population (though perhaps less diverse than Britain’s).3 Bosnia emerged in 1995 from three and a half years of devastating inter-ethnic armed conflict. The Bosnian constitution is not in any sense conventional, drawn up, as it was, as Annex IV to the Dayton Peace Agreement.4 With the signatures of the war’s main protagonists, the Dayton Peace Agreement successfully ended the war that ravaged Bosnia following its declaration of independence from the former Yugoslavia.

Neither the Dayton Peace Agreement nor the Bosnian constitution within it, however, created the successful democratic and functioning State envisaged by its chief proponents.5 Instead, it set out complex procedures for governance that have institutionalised ethnic division and led to governmental paralysis. Bosnia, for instance, is composed of two devolved entities, three ‘constituent peoples’, and five layers of governance which, together, count among them a tripartite State presidency, two entity presidents, and fourteen prime ministers and governments.6 In a country of no more than 3.53 million inhabitants (AfS 2013), Bosnia has the highest number of presidents, prime ministers, and ministers per capita in the world. Such a proliferation has made streamlined and efficient government difficult (Belloni 2010, 99). The Bosnian constitution has no popular mandate and lacks any features that may allow future democratic legitimacy. It has been imposed on the people and like other constitutions created in—or mostly for—seemingly ‘divided societies’, it has proved immune from change.

      Most written constitutions are a product of war or revolution and are imposed by political elites who do not formally consider the views of ‘their’ people, even if they occasionally invite them to ratify the new arrangements. The absence of popular participation is not always fatal to the working of a constitution, but it can be if the political culture of the people differs from these rules-that-create-all-rules which the people are then required to respect.

      This book seeks to contrast the two very different models of constitutional design in Britain and Bosnia. They sit at very different ends of a spectrum. The comparison goes to the heart of what a constitution is understood to be. Is it imbued with meaning, culture and history and, as such, is the soul of a State and its people? Or is it merely a functional, abstract and prescriptive set of rules which create the practical environment in which the people go about their everyday business?

In Bosnia, abstract and prescriptive constitutional rules have real world consequences. The Bosnian constitution has maintained and reinforced ethnic division and led to governmental deadlock. There are critical aspects of the constitution that require reform and there has been no shortage of proposals for reform.7 All reform proposals since 2005 to amend the Bosnian constitution, however, have been driven by political elites and have failed. These failures are to the immense detriment of individual human rights,8 and amount to at a colossal economic cost to the electorate. Up to 55 per cent of the entire State budget,9 some 3 per cent of the country’s GDP, is spent on government administration, largely as a result of Bosnia’s highly complex system of government (PIC 2020). By comparison, the cost of the Britain’s central government administration is approximately 1.36 per cent of the State budget, some 0.5 per cent of the country’s GDP.10

      Why has reform not succeeded? As this book will seek to show, efforts have been impeded by intransigent, narrow, and nationalist positions adopted by the political representatives of Bosnia’s three official ‘constituent peoples’: Bosniaks (Muslims), Bosnian Croats (Catholic Christians) and Bosnian Serbs (Orthodox Christians). These representatives sit in a number of constitutionally created institutions: the Parliamentary Assembly, the State Presidency and the two federal entities of Bosnia (Republika Srpska and the Federation). Intransigence is made possible due to vetoes, strict ethnic quotas and decentralised powers accorded exclusively to the three constituent peoples, all at the expense of such individuals or groups as are not specifically recognised by the Bosnian constitution. The constitution collectively and dismissively describes, although does not define, those not falling withing the three constituent groups as “Others” or “Citizens”. Others loosely comprise those identifying as “Bosnians and Herzegovinians” or those refusing to politically affiliate with any of the three constituent groups and the corresponding ethno-national political parties.

The Bosnian constitution was premised on the notion that the people, harbouring ‘ancient hatreds’, are divided, meaning that it is preferrable to leave decision-making in the hands of political elites.11 Meanwhile, experts warn about the latent desire of political elites for renewed armed conflict. In the international arena, powerful countries like Russia, China and Turkey are pursuing their own narrow self-interests in the Balkans and this has exacerbated local ethno-national competition. The economic and political manoeuvring of these powers demonstrates their intention to rescind the international communities’ guarantee to maintain the peace in Bosnia. In the domestic arena, ethno-nationalist elites in Bosnia are vying with each other for support in their secessionist ambitions by appealing to predatory neighbours, namely Croatia and Serbia. These international and domestic pressures are compounded by US dis-engagement from the region over the past decade. This has created a power vacuum in the region for other international actors to fill.

In Britain, the constitutional arrangements seem to have worked relatively well historically in maintaining stability and adapting to needed political as well as socio-economic change.12 The British constitution does not have a formal mechanism to give priority or permanence to one piece of legislation above another.13 This is generally true of statutes that have constitutional significance and means that, where political practice is accommodating and respectful of traditions, adapting the constitution in accordance with changes in society is evidently much easier. A number of recent crises, however, have put the constitution to the test. These crises include: the process leading to the UK withdrawal from the European Union (“Brexit”); constant appeals for secession from Scotland and Northern Ireland; the breakdown of centuries-old conventions as seen with the unlawful prorogation of Parliament by the Prime Minister in 2019; the placing of limits on Parliamentary